SafeWork NSW v Burke

[2025] NSWDC 29

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Burke [2025] NSWDC 29

Hearing dates:

06 February 2025

Date of orders:

24 February 2025

Decision date:

24 February 2025

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Bede Burke is convicted.

2 I impose a fine of $30,000 for the s 32 offence and pursuant to s 10A Crimes (Sentencing Procedure) Act 1999 I impose no further penalty for the s 38 and s39 offences.

3   I will defer making a costs order until there is agreement on the appropriate quantum or pending further argument.

4 I order that pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - penalty

SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Work Health and Safety Act 2011

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

Jahandideh v R [2014] NSWCCA 178

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

Texts Cited:

Australian Standard 2359.1 - Powered Industrial Trucks Part 1: General Requirements

Australian Standard 4024.3610:2015 Safety of Machinery Part 3610: Conveyors - General Requirements

Managing the Risk of Falls at Workplaces - August 2019

SafeWork Fact Sheet Machine Safety- Starts with You

AS 2359.1-2015: Powered industrial trucks - General requirements

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Bede Burke (Offender)

Representation:

Counsel:
M Moir (Prosecutor)
M Shume (Offender)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Everingham Solomons (Offender)

File Number(s):

2022/18347
2022/18362
2022/18368

Publication restriction:

None

JUDGMENT

Introduction

1. Bede Burke (the offender) appears for sentence after pleading guilty to:

1. an offence pursuant to s 32 of the Work Health and Safety Act 2011 (the Act) in that he failed to comply with the health and safety duty he owed pursuant to s 19(1) of the Act and thereby exposed Desmond Saunders to a risk of death or serious injury;

2. an offence pursuant to s 38 of the Act in that he failed to notify the Regulator immediately after the incident; and

3. an offence pursuant to s 39 of the Act in that he failed to ensure that the site where a notifiable incident occurred was not disturbed.

2. The maximum penalty for:

1. the s 32 offence is a fine of $300,000;

2. the s 38 offence is a fine of $10,000; and

3. the s 39 offence is a fine of $10,000.

Facts

Background

3. The Glenwarrie Partnership (the partnership) is an agricultural business including "Glendon" an egg farm at 198 Careys Lane, Tamworth in the state of New South Wales (the premises).

4. The partnership is made up of husband and wife, the offender and Narelle Burke. There is no written partnership agreement. On 5 May 2000, the partnership was registered on the Commonwealth Australian Business Register and was issued Australian Business Number 61 677 336 884.

5. The offender and Narelle Burke had the day-to-day management and control of the partnership and the premises.

Relevant workers

6. At all relevant times Richard Burke, John Wood and Desmond Saunders were employed by the partnership as farm hands.

7. Mr Wood has worked in engineering shops for a combined 64 years and has been involved in the design and manufacture of various equipment, but he does not hold, and has never held, any certificates or qualifications as an engineer.

8. Mr Saunders had been employed for over 30 years by the partnership and was considered to be the senior farm hand.

The incident on 15 January 2020

9. On 15 January 2020, at approximately 8:00am, the offender instructed Mr Saunders to go down to "Shed 2" to find out why the belt on a manure conveyor was slipping. He also instructed Mr Wood to go with him. Soon afterwards, the offender also instructed Richard Burke to go to Shed 2 and help them.

10. The conveyor belt had apparently slipped during its operation. The manure conveyor ran inside a large chicken shed and extended outside the shed to the loading end, or head of the conveyor, for a semi-trailer to collect the chicken waste below. The loading end of the conveyor was approximately 4 metres above the ground.

11. To repair the manure conveyor a worker had to be elevated to the head of the conveyor which was at a height of approximately 4 metres. Mr Saunders and Mr Wood were elevated to the head of the conveyor by standing on a pallet that was raised by a forklift operated by Richard Burke. Their feet were raised at a height of approximately 2.5 metres whilst they stood on the pallet.

12. Both Mr Saunders and Mr Wood were standing on the pallet underneath the end of the conveyor. Mr Wood was working on one side of the conveyor and using tools to adjust the bolts on the drum rollers.

13. There was an isolation switch on the control panel of the conveyor located on the outside of the shed. The isolation switch was not turned off at the time of the incident, and there was no written requirement for it to be switched off during the repair and maintenance of the conveyor. There were no isolation and tag out padlocks provided to isolate the switch or the control panel.

14. Whilst operating the forklift, Richard Burke was operating the manure conveyor via the control panel that was situated approximately 10 to 15 metres away from the forklift on the outside of the chicken shed. He was turning the conveyor off and on (jogging the conveyor belt) to assist Mr Saunders and Mr Wood to assess what was causing the conveyor to malfunction.

15. A work platform (a device designed to be fitted to the tynes of a forklift, and to enable the lifting of personnel by a forklift, and which incorporated side rails to approximately waist height) was available at the premises but was not used.

16. Neither Mr Saunders nor Mr Wood were wearing a safety harness and lanyard that was connected to an anchor point, and there was no fall arrest system in place while they were standing on the elevated pallet. The pallet itself had no rails, gates or any other features to prevent Mr Saunders or Mr Wood falling to the ground below.

17. Mr Saunders and Mr Wood were also working within the "danger zone" of the conveyor as they were standing on the elevated pallet, and were exposed to entanglement, pinch and shear hazards within the machinery.

18. At approximately 9:15am, Richard Burke, left the forklift unattended while Mr Saunders and Mr Wood were still raised in the air and continued to operate the manure conveyor via the control panel. Mr Saunders and Mr Wood were standing on the elevated pallet and working on each side of the head of the conveyor as the conveyor was being turned off and on by Richard Burke.

19. Mr Saunders reported he was cleaning the bearings around the drum roller when he turned around to face Mr Wood and momentarily lost his balance. Mr Saunders put his hand out which came into contact with the moving belt which pulled his hand between the conveyor belt and the roller.

20. Mr Saunders and Mr Wood yelled out to Richard Burke, who stopped the conveyor belt by activating a stop button on the control panel. Richard Burke then came to the aid of Mr Saunders by climbing up the mast of the forklift. Mr Wood loosened the nuts of the rollers until Mr Saunders' fingers were eventually freed. Richard Burke then climbed back down to the forklift and lowered Mr Saunders and Mr Wood to the ground.

21. The offender was immediately notified of the incident and rode his motorbike over to the car next to the main house, where Richard Burke had taken Mr Saunders to retrieve his wallet. The offender observed the injuries sustained by Mr Saunders. Mr Saunders was driven to Tamworth Hospital by Richard Burke.

Injuries

22. Mr Saunders sustained lacerations to his left index, middle, ring and little fingers and an open fracture of his left middle finger.

23. He underwent multiple surgeries to repair his left hand. He did not return to work and was left with permanent impairment of his left hand. Mr Saunders is now deceased.

Notification

24. The incident involving Mr Saunders was not immediately notified to SafeWork by the offender, Narelle Burke or anyone else on behalf of the partnership. The incident site itself was not preserved. The forklift and the pallet were moved away from the scene of the incident. The manure conveyor was repaired by another worker later in the day on 15 January 2020.

25. The incident was notified to SafeWork on 21 January 2020 by a family member of Mr Saunders.

Guidance material available at the time of the incident

26. Australian Standard 4024.3610:2015 Safety of Machinery Part 3610: Conveyors - General Requirements (the Standard) was available to the partnership at the time of the incident.

27. Section 6.1 of the Standard provides guidance on maintenance of conveyors and states as follows:

The following apply to the repair and maintenance of conveyors:
If access to a conveyor is provided, the conveyor shall be stopped and a lock out, danger tag out permit or other control measure shall be used.

28. Section 6.3.2 is entitled "Isolation" and states as follows:

Maintenance shall not be carried out unless all drive and stored energies which could cause harm are effectively isolated, or have their energy dissipated, or both.

29. The SafeWork Fact Sheet "Machine Safety- Starts with You" states as follows:

Machine isolation is an integral process to ensure that workers who are required to provide Maintenance and Repair of plant are safe as possible to carry out the work.

30. The SafeWork Code of Practice "Managing the Risks of Plant in the Workplace" was published in August 2019 (the Plant Code). Section 3.6 of the Plant Code was entitled "Maintenance, repair and cleaning of plant" and states as follows:

Plant should usually be isolated before maintenance starts ... The work should be carried out under controlled procedures to allow for maintenance and cleaning without risk to the health and safety of the person performing the work.

31. Section 4.5 of the Plant Code is entitled "isolating energy sources" and states as follows:

An isolation procedure ... should be followed when workers are required to perform tasks, for example maintenance, repair, installation and cleaning of plant ... The lock-out process is the most effective isolation procedure.

32. The Plant Code also provides examples of a lock-out process with a tag and a padlock.

33. The SafeWork Code of Practice "Managing the Risk of Falls at Workplaces" was published in August 2019 (the Falls Code). Section 5 of the Falls Code provides guidance on fall prevention devices, including temporary work platforms and states in Section 5.1 as follows:

Where reasonably practicable, other working platforms like EWPs or scaffolds should be used as an alternative to a workbox or work platform, and

…

You should also ensure … the operator remains at the controls of the crane, hoist, forklift truck or other mechanical device at all times, and

…

Work platforms used on forklifts to elevate people to work at height should be engineer designed and constructed in accordance with AS 2359.1-2015: Powered industrial trucks - General requirements, and

…

In managing the risks of using a work platform to provide an elevated work area you should ensure that:

- workers are only raised by a forklift when in a compliant work platform
- no other device such as a ladder or pallet is used to gain additional height.

34. The Falls Code also states in Section 1.3 as follows:

Information, training, instruction provided to workers exposed to potential falls from working at any height should include:

-    the proper use, wearing, storage and maintenance of PPE

-    the hazards and risks associated with work performed at these heights

-    how to follow health and safety procedures associated with this work, including the contents of any SWMS, and

-    the reasons fall protection measures have been put in place and how to use them properly.

System of work before the incident

Repair and maintenance of manure conveyor

35. There was no risk assessment carried out prior to the task of repairing the manure conveyor commencing on the day of the incident.

36. The partnership did not have in place any written requirement for the manure conveyor to be stopped and isolated before repair and maintenance work carried out on it.

37. At the time of the incident, there were no documented procedures in place for the repair and maintenance of the manure conveyor. The procedures were verbal and were largely improvised by the workers.

38. Mr Saunders and Mr Wood had not previously been involved with, or received training in relation to, repair and maintenance work of the manure conveyor.

39. There was an isolation switch on the control panel, but there was no lock out and tag out system for isolating the manure conveyor to prevent any contact with the moving parts of the conveyor during its repair and maintenance, including any inadvertent contact by a worker.

Working at height

40. There were no systems in place for the safe use of fall arrest equipment, such as a properly anchored safety harness and lanyard, while undertaking the task of repairing the conveyor at height.

41. Pallets lifted by a forklift had previously been used as an ad hoc work platform for working at heights.

42. There was a non-compliant work box available for use at the premises. The work box had been designed and manufactured by Douglas Engineering in Tamworth and had been built and used during the construction of the shed in 2009, and it could be readily fitted to the tynes of the forklift. This work box did not comply with Australian Standard 2359.1 - Powered Industrial Trucks Part 1: General Requirements.

Systems of work after the incident

43. SafeWork issued improvement notices on 30 January 2020 requiring a safe system of work for maintenance and repair work on the manure conveyor.

44. The partnership purchased a work box that complied with Australian Standard 2359.1 - Powered Industrial Trucks Part 1: General Requirements and issued a written Work Instruction for Forklift Operation.

45. A further improvement notice was issued on 21 August 2020 requiring the manure conveyor to be isolated during repair and maintenance. The partnership engaged a licensed electrician to install isolation locks on the control panel of the conveyor.

46. The partnership also issued an updated Work Instruction for maintenance of the manure conveyor which included the isolation procedure. The workers were trained in this new isolation procedure.

Prior Conviction

47. The offender has no previous convictions for breaches of the Act.

Offender’s Case on Sentence

48. The offender relied on the affidavit sworn by him on 8 October 2024 and the affidavit of Narelle Burke sworn 8 October 2024. He also relied on the following:

1. a signed reference letter of Xavier Martin, the President of NSW Farmers, dated 23 May 2023;

2. a signed reference letter of Stephen Hall, a fellow of the Chartered Accountants Australia and New Zealand and a former Official Liquidator, dated 8 May 2023;

3. a reference email by the Honourable Duncan Gay, a former MP Minister and Leader of the Government, dated 13 May 2023; and

4. a signed reference letter of Russell Webb, the Mayor of Tamworth Regional Council, dated 19 May 2023.

49. The following is a summary of their evidence.

Partnership

50. The partnership conducts a mixed enterprise business of egg production, cereal cropping and raising livestock (cattle and sheep).

51. It has approximately 15 regular staff and uses casual staff from time to time. It has four farm hands, and 11 egg packing/bird handling staff. Some of the staff have been there for up to 10 years and others have been there less than one year, so the level of competency is varied. Where relevant to their position and tasks undertaken for the partnership, these employees have done courses in chemical, forklift, working at heights and use of all-terrain vehicles (ATVs).

The offender's role in the partnership

52. The offender is 64 years of age and stated in his affidavit that his role in the partnership is more the day-to-day operations. He described his involvement as “hands-on” in all aspects of the business.

53. Narelle Burke’s role in the partnership is centred on the administration of the business with a particular focus on the poultry. It is her responsibility to handle the HR, Work Health and Safety (WHS) and policies involved in the partnership. She runs meetings with staff addressing any WHS issues as well as giving all staff the opportunity to raise concerns.

54. Narelle Burke stated in her affidavit that she inducts all staff onto the farm and ensures that all staff have been provided with and understand the policies and procedures of the partnership. She does this by speaking with them on a one- to-one basis so that they know what is expected of them. An induction usually takes one to two hours and involves her taking them through the documentation to make sure they understand what is contained in it, and walking around the farm which is relevant to the work they are going to be doing.

The offender’s pre-incident safety record and system of work

55. The offender has never been subject to a workplace investigation. He stated that he has always taken the safety of his workers as a priority. He has previously made the farm available to the Regulator to assist, identify and manage risks in the agricultural industry and he is committed to improving safety in this industry. The partnership has complied with all work order directions within the time specified.

56. He deposed that the partnership focuses on ensuring that its staff have appropriate training and up-to-date certification. For example, the staff that are involved with the cropping and livestock have obtained at the partnership’s own expense, a Certificate 111 in Agriculture whereas the staff on their property that undertake work in the poultry section have undertaken a Certificate 111 in Poultry. This was done on farm by a registered training organisation, VERTO. As part of this training, forklift licences and first aid training were included.

57. The partnership also has paid for Mr Saunders over his time at the farm to undertake courses including, but not limited to, forklift courses. It is a condition of having a forklift licence that you do not lift anyone on a pallet.

58. Narelle Burke deposed that they have strived to have a safe workplace even though it is difficult in agriculture with so many different enterprises and they are still a family business without corporate backing trying to address all aspects themselves. The partnership has been practicing the following initiatives:

1. provided training for ATV courses, chemical training and refresher courses, forklift courses, working at heights courses - all run through the Department of Primary Industry;

2. provides safety equipment including PPE equipment, gloves, eye protection and masks;

3. removed overhead power lines and put power underground, in paddocks as well as travel routes around the farm to ensure safety;

4. installed car hoists for safety while servicing vehicles in the workshops. Also implemented the side-by-side replacement program to replace 4x4 motorbikes; and

5. purchased a Genie scissor lift and wave lift for safe lifting in the layer shed to increase safety of working heights.

The offender’s relationship with Mr Saunders

59. The offender first came to know Mr Saunders in the early 1990s. Mr Saunders was a member of his church congregation at St Patrick’s, West Tamworth.

60. Mr Saunders and his wife were well known to the offender’s family. There were a number of occasions where the offender left his children to be babysat by Mr Saunders and his wife. The offender’s family often celebrated birthdays and other family events on the farm and Mr Saunders and his wife were invited. They were good friends.

59. During Mr Saunders’ employment with the partnership, he had a series of health issues including having one of his lungs removed as a result of cancer. As a result of the removal, he had a reduced capacity to undertake the required manual work involved in the partnership. Narelle Burke and the offender accommodated Mr Saunders by finding him other jobs on the property that he could undertake that were not so labour intensive. This is because they valued Mr Saunders as a friend and a worker, his long service and reliability to the partnership.

60. The offender stated that he was aware of Mr Saunders approaching older age and had put to him on a number of occasions options where he might like to drop back from five days a week to four or three. Again this was to recognise his long service and his value to the partnership. The offender was trying to provide Mr Saunders with flexibility in his later years so that he could continue to work for them even in a reduced capacity. Despite these offers, at the time of the incident, Mr Saunders was working five days a week at his election.

61. The offender considered Mr Saunders to be a reliable and trustworthy second -in-charge. He did not consider that Mr Saunders needed to be directly supervised. It was sufficient that they would speak about what work had to be done and distributed the work on an “as needs” basis. He would not allocate Mr Saunders work if he did not think that Mr Saunders could do it safely and in a manner which they expected. There were many times where Mr Saunders was left in charge of the farm on a day-to-day basis because Narelle Burke and the offender were very busy working in the community which took them away from the farm on a regular basis.

Remorse and Contrition

64. The offender feels responsible for Mr Saunders’ injury as well as saddened that someone who he has known for 30 years became estranged as a result of the incident and investigation.

65. He further stated that he is deeply sorry for breaching the WHS laws. He deposed that it was never his intention to do so. It has always been his intention to comply with the safety laws and provide a safe workplace where no one would be injured. He is particularly upset that a good and loyal friend and a worker, was injured as a result of his failure to ensure safety.

66. If he knew that the pallet, not a man cage, was going to be used he would never have allowed his employees to undertake the work which led to the incident.

67. He stated that the whole process has been draining, devastating and an emotional roller coaster, not to mention a serious financial burden. He cannot express enough his deep remorse for the injuries suffered by Mr Saunders and his embarrassment for being in this position. He would hope that this Court or any other will never see him again in a similar position.

68. His increased anxiety has led to poor sleep and an uptake in alcohol to cope with the stress. He knows he should see a doctor but again he feels ashamed to do so.

69. He has tried to lead a life of service and to be a role model to his children and to others. He worries that this prosecution has undone much of his life's work or at a minimum, affected his standing in the local community.

70. People often contact him, particularly after media releases, to see how he is dealing with the prosecution. He feels ashamed by this and that he has let people who respect him down.

Prior to the day of the incident – man up cage and droughts

71. Prior to the incident there was a man up cage that had been made by a local engineering firm called Douglas Engineering in or about 2008.

72. In the cage, 30 mm spanners were stored for the specific tasks of working on the manual conveyor belt.

73. In January 2020 the Tamworth region was at the end of one of the worst droughts in living memory. The partnership relies on growing the majority of its grain as feed for the egg production side of the business. If they are unable to grow their own feed, they are forced to purchase grain on the open market which can be very expensive and unreliable. During the drought, the partnership had to go into considerable debt to pay the feed bills to ensure that the egg production business was able to be maintained.

Day of the incident

74. At the time of the incident, there were approximately four permanent staff and 13 casual staff. Due to his seniority, Mr Saunders was by delegation the second-in-charge of day-to-day operations. The offender stated that he would often delegate things to Mr Saunders and he in turn would delegate to other employees. This included at the time, Mr Wood and his son, Richard Burke.

75. At this time the offender was setting up a planter for some sorghum planting with his nephew, William Burke. This was an urgent task as there is a narrow window in which to plant sorghum particularly in relation to time of year and available moisture. The 15th of January is right at the end of the sowing window and they were in the middle of a prolonged drought, but the rain came, and they were fortunate to get a crop where others in the district did not. As he was busy attending to these tasks, he asked Mr Saunders and Mr Wood to go and investigate the manure conveyor belt.

76. Shortly after sending down Mr Saunders and Mr Wood, he sent Richard Burke down to see if he could assist them with the issues of the manure conveyor belt as he was of the view that it would be safer having three employees rather than two, inspect and work on the manure conveyor belt. He also knew that both Mr Saunders and Richard Burke had forklift licences and if it required working at heights then there would be at least two of the three employees who would be able to operate a forklift.

77. Sometime later that morning he received a phone call from Mr Saunders on his mobile phone where Mr Saunders said that he had been injured and was coming up to the workshop to get his wallet.

78. The offender stated that Mr Saunders arrived in his truck. Richard Burke was driving. He deposed that he could only see the back of Mr Saunders' hand that he was holding up. He could not see any blood on his hand. Mr Saunders was fully conscious and was able to have a conversation with him. He then saw Richard Burke drive Mr Saunders off to Tamworth.

Reporting

79. As part of the usual practice, given that Narelle Burke is in charge of the administrative side of issues, such as WHS, the offender rang her on her mobile to tell her about the incident. At this time Narelle Burke was not on the farm. She was in Canberra attending a meeting with the then Minister of Education in relation to her role with the Catholic Schools Organisation.

80. The offender recalls telling Narelle Burke that there had been an accident with Mr Saunders. He had seen his hand. There did not appear to be any blood, but he was on his way into town. He stated that Narelle Burke thanked him, said that she would look up what to do in relation to reporting and tell their insurer.

81. Narelle Burke deposed that she recalls that the first page of the SafeWork website stated that she had to report the incident if it was a death, loss of limb or serious accident. As she knew that Mr Saunders’ injuries were not consistent with the injuries described, she then looked further on the website to find the definition of a serious injury.

82. She recalls then finding a definition on the SafeWork website that stated that a serious incident was head injury, back injury, eye injury, burns, electrocution and degloving. She could not find any reference to broken fingers and soft tissue damage which she had assumed he would have suffered from the description she was given.

83. Approximately 10 minutes later she rang the offender back and they had a conversation as follows:

Narelle Burke: Bede, I've had Gill notify icare. I've been on the SafeWork website. I have been through it. Given the type of injury that Des has it looks like it is a non-reportable injury. The website deals with electrical shock, degloving and loss of limb, loss of life and as there was no ambulance or police called out it is a non-reportable accident.

The offender:   Ok thanks Narelle. I will let you know when Richard is back, and I guess we'll know more then.

84. The offender deposed that after this phone call he was of the genuine belief that there was no requirement to report, otherwise he had every confidence Narelle Burke would have reported this.

85. As the offender did not think that the incident was a reportable offence, he then did not think that the scene of the incident needed to be preserved. He used the forklift later that day to move pallets of eggs during the usual business of the partnership.

86. Sometime later that afternoon Richard Burke returned from town and said that he had been with Mr Saunders, it did not look like he would be kept in hospital and that his wife was there for support.

87. The first time that the offender was aware that Mr Saunders had actually been admitted was the next day (after the incident) when he visited Mr Saunders in hospital.

88. The offender did not link this to the issue of the incident being reportable. He accepts that he should have realised at this point that there was an issue and gone back to discuss it with Narelle Burke.

89. Narelle Burke stated that she believed she had to make that decision at the time of the incident. She deposed that she was confident she had made the correct decision at the time and that the injury was not reportable. The first time she was fully aware of the description of Mr Saunders’ injury was when she received a Certificate of Capacity from icare which she and the offender received approximately two weeks after the incident.

90. Narelle Burke apologised for making the wrong decision. There was no intention to mislead or hide what occurred. She thought she was doing the right thing at the time.

Timing of plea

91. The offender acknowledges that it took him some time to enter a plea of guilty to this matter. There were varying reasons for this including attempting to enter an enforceable undertaking, Narelle Burke being diagnosed with breast cancer and then focusing on negotiating the withdrawal of the charges against her.

Co-operation with SafeWork

92. During the investigation, the offender and Narelle Burke assisted SafeWork by way of interview and complied with requests for documents as well as directing their staff to be available to SafeWork when required.

The offender’s community involvement

93. The offender stated that he has always held the need to give back to the community as a priority in his life moving forward. It is something that he shares with Narelle Burke and hopes that he has passed on to his children.

94. The area in which he lives is a relatively small community and volunteer organisations require people to assist to ensure that they have longevity. Due to this he has been involved in a number of different volunteer organisations. These are unpaid organisations which he devotes his time to so that they continue to serve the community in which he lives.

Community Service

95. The offender has never counted the hours of community service but over the last 20 years he would estimate that not a week goes by when he has not assisted in community service. His involvement with the community can be summarised as follows:

1. a Fire Captain of the Byamee Bush Fire Brigade and a member of Tamworth West Rotary Club;

2. a member and life member of New England and Central North Swimming Association and a life member of the Tamworth City Swimming Club;

3. a grains steward at the Tamworth Show;

4. a judge of the Sydney Royal Easter Show - designed and implemented the schools’ egg laying competition;

5. a board member of the Tamworth Aero Club;

6. the Chairman of the Egg Producers Committee and the NSW Farmers Animal Welfare Committee;

7. the Australian Chairman of the Egg Farmers of Australia, the industry peak body, the Co-Op director of the NSW Egg Producers, and the Chairman and the Co-op Board member of the Tamworth Egg Farmers;

8. the Chairman of St Patrick's Parish Finance Committee;

9. the NSW National State Electoral Council Chairman, Party Vice Chair and Chairman for a five year term. The commitments for the National Party were at sometimes akin to a full-time job in the amount of hours that he would have to contribute, however, he found them rewarding being able to support politics and people in regional NSW; and

10. the recipient of the Australian Medal for Service during the Queen's Birthday Honours. This was in recognition of his service to the community of Tamworth and the Egg Industry of Australia.

96. The offender has also made the farm open to groups in the hope that it would advance knowledge in the agriculture and medical industries. Farm excursions have been received by Hawksbury Agriculture College, University of New England which has included some of the PhD students and second- and third-year rural science students. The Newcastle Medical Faculty has also sent on a number of occasions, registrars to investigate safety and risks which can lead to farm accidents. He has also had delegates from the University of New South Wales Veterinary School and the CSU Wagga Campus Veterinary School.

97. He has often hosted Rotary groups, some from different parts of the country and overseas in an attempt to facilitate cultural exchanges. Further, he has opened the farm on a number of occasions to WorkCover which has conducted seminars, field days and accident reconstructions on farms. During these field days he would often ask the delegates of WorkCover to review the partnership's safety systems.

Paid Directorship

98. The offender was the Chairman of the Tamworth Co-op which later became Tamworth Rural which in turn was then sold to Pursehouse Rural. This was a multi-site operation that employed in excess of 30 people and had a number of shareholders locally. He took great pride that he was able to set out and achieve the main goal which was the retention of all staff during the transition as well as a generous dividend payment upon the finalisation of the company to shareholders locally.

99. He was also a Director of Australian Eggs, which comes under the umbrella of the Department of Agriculture, Fisheries and Forestry. Australian Eggs is a Rural Research and Development Corporation ("RDC") of which like Meat Livestock Australia ("MLA"), there are only 15 RDC's in Australia. This is an elected position. Australian Eggs allows the Australian Government and industry to co-invest in the research and development within the Australian Egg industry. He has been a Director of this institution for approximately seven years.

Tamworth Regional Council

100. In late 2021, the offender stood and was elected as a Councillor in the Tamworth Regional Council. He did this on the basis that he wanted to further contribute to his local community. At the time of the election SafeWork had not elected to prosecute him and Narelle Burke. There had been an investigation but due to the passage of time he was of the genuine belief that a prosecution would not eventuate. Had he known that a prosecution would continue, and he would be continually named as a Tamworth Regional Councillor in media when reporting on the prosecution, he would not have stood.

101. The offender enjoyed his time as a Councillor for Tamworth Regional Council and found it rewarding. It does cause him great anxiety however when this case is continually linked to Tamworth Regional Council as he worries that it has in some ways brought the Council and its elected officials into disrepute.

102. In relation to every voluntary or elected position that he currently holds, due to the media interest in this prosecution he has offered his resignation. In every organisation, be it volunteer or otherwise, his resignation has been refused even though they are aware of the prosecution that is before the Court.

Media attention

103. In his affidavit, the offender outlined the media attention he has been receiving since the incident. There have been several online and printed media articles, where the offender was often referred to as the former NSW National Party Chairman of Tamworth Regional Council. The incident was also reported on Tamworth's highest rating radio station, 88.9FM.

104. When the offender searches his name on the internet, despite the volume of community work that he has undertaken and accolades provided to him, the internet searches heavily reference this incident.

105. The offender feels that his good name has been brought into question. He now experiences anxiety when talking to the press.. He also experiences anxiety when he reads the local paper as he is concerned that they may be another story in relation to this prosecution.

106. He feels that those in his community have been told facts that are not true.

107. Of particular concern to him was an article in The Leader, the local Tamworth newspaper, which had an extract of a quote purportedly from SafeWork or the fact sheet that stated, "Saunders has not returned to work and has been left with a permanent impairment of his left hand." This statement was particularly distressing to him as it post-dated the passing of Mr Saunders. He found it to be disrespectful and he was concerned that in some ways it failed to acknowledge the passing of Mr Saunders and merely focused on the incident and the media attention on him due to his profile. He was also concerned that it may have offended Mr Saunders' family or caused them unnecessary further grief.

108. Following publications he was contacted by a number of people across a number of states who he had met through either his involvement with the NSW Farmers, the National Party, the Egg Board or family and friends who had expressed their concern that he was now the centre of media attention particularly in places where they did not expect the media to have taken up the story. Further, other members of the community have expressed their concern that someone who has taken safety seriously and provided facilities to safety regulation bodies, can have articles written in such a fashion.

The future of the partnership

109. The offender stated that he does not have a positive outlook for the partnership. If a conviction is given, he feels he would have to give up farming which is something he loves. The reason for this is his concerns about how vulnerable the business would be if another incident was to occur. A second prosecution may well bankrupt them, and he worries that given the exposure to risk in the agricultural industry, this is something he could not do to his family or transfer the risk to his children if they bought into the partnership. This prosecution has disrupted the family’s farm succession plan.

110. Since this prosecution began, three of the offender's children no longer work in the partnership.

111. He also worries about the employees who rely upon the partnership and the independent family businesses of which the partnership is the sole supplier that rely on the eggs to sell in their wholesale businesses.

112. Additionally, Narelle Burke was diagnosed and has been treated for breast cancer during this prosecution. The offender worries that this prosecution has only added to her struggles.

113. The offender has purchased a residence in town and has listed the farm for sale.

Consideration

114. I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

Objective seriousness

115. The s 32 offence involves some objective gravity. The offender was responsible for the system of work and supplied the necessary equipment to the workers. The risk of a worker falling from an elevated pallet without rails, gates or any other preventive features was obvious and known to the offender. Likewise, the risk of a worker’s hand becoming trapped in moving machinery was well-known in the industry. By his plea of guilty the offender admitted that he should have taken the reasonably practicable steps set out in the Summons. The likelihood of the risk coming home if appropriate control measures were not taken was moderate. The control measures that should have been implemented were simple, inexpensive and well known to the offender. The pleaded risks were a risk of death or serious injury. The injuries sustained by Mr Saunders were serious.

115. In relation to the s 38 and s 39 offences, the offender was mistaken as to what constituted a notifiable incident and the steps that were to be taken following such an incident. The error would not have occurred if the offender had in place a system to report notifiable incidents. Such a system could have easily been implemented by the offender.

116. I have taken into account the maximum penalty for each offence.

Deterrence

118. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

119. There is some need for specific deterrence. In this case, the offender still operates a business that potentially exposes workers to risks as a result of its operation. However, the offender’s present intention is to sell the business and I am satisfied that the incident has caused the offender significant mental anguish for an extended period.

Aggravating factors

120. The injury harm and loss caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained, but merely the creation of a risk of death or serious injury. The injuries sustained by Mr Saunders are sufficient to establish this aggravating factor.

Mitigating factors

121. The offender does not have any record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW). The offender was 64 at the time of the incident and had operated the farm for many years before that, without incident.

122. The offender was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The offender was, and still is, a person of exceptional character. He has worked for the community over a long period in many different roles. He is entitled to significant credit for his community involvement. The offences to which the offender has pleaded guilty are regulatory and require a high standard of compliance to ensure that workers are not put at risk while they are at work. I am not satisfied that the offender will, or should, suffer a significant loss of reputation by reference to this incident. Even if I am wrong in that conclusion, general deterrence requires that some significant penalty be imposed for these offences, especially to convey to family-based primary production businesses that safety standards must be strictly enforced.

123. The offender is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. The offender’s experience of the investigation and these proceedings has been mentally and emotionally taxing. I am satisfied that he now understands the impact that breaches of the Act can have on injured workers, family members and the community. I am satisfied that he has learned a salutary lesson and that he is unlikely to reoffend.

124. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated through the comprehensive and timely steps he has taken to improve its processes and safety systems, that he has good prospects of rehabilitation.

125. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has expressed remorse for the injury sustained by Mr Saunders and accepted responsibility for its failure to comply with its duty under the Act. I accept this to be a genuine expression of contrition. The plea of guilty also indicates remorse.

126. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.

127. The offender co-operated with the investigation conducted by SafeWork: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

Capacity to pay a fine

128. The Court is required to have regard to s 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

129. The offender did not contend that he had a reduced capacity to pay a fine.

Penalty

130. Bede Burke is convicted.

131. For the s 32 offence, the appropriate fine is one of $40,000, which will be reduced by 25% to reflect the discount for the plea of guilty. I impose a fine of $30,000.

132. For the s 38 and s 39 offences the appropriate fine is $6,000 for each offence, which will be reduced by 25% to reflect the discount for the plea of guilty and then reduced to nil to reflect the principle of totality. I impose no further penalty for these offences pursuant to s 10A Crimes (Sentencing Procedure) Act 1999.

133. I will defer making a costs order until there is agreement on the appropriate quantum or pending further argument.

134. I order that pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

**********

Amendments

27 June 2025 - The penultimate sentence in [115] now reads: The pleaded risks were a risk of death or serious injury.

Decision last updated: 27 June 2025